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Final Decision FIC2014-402
In the Matter of a Complaint by
FINAL DECISION
Ramon Lopez,
     Complainant
     against
Docket #FIC 2014-402
Chief, Police Department, City of
Bridgeport; Police Department, City of
Bridgeport; Commissioner, State of
Connecticut, Department of Correction;
and State of Connecticut, Department of
Correction,
     Respondents
April 22, 2015

     The above-captioned matter was heard as a contested case on January 23, and March 5, 2015, at which times the complainant and respondents appeared and presented testimony, exhibits and argument on the complaint.  The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).   
     After consideration of the entire record, the following facts are found and conclusions of law are reached:
     1.  The respondents are public agencies within the meaning of §1-200(1), G.S.
     2.  It is found that on June 16, 2014, the complainant requested records from the Bridgeport respondents concerning his criminal matter in 2002. 
     3.  By letter of complaint filed June 25, 2014, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide the copies he requested.
     4.  Section 1-200(5), G.S., defines “public records” as follows:
Public records or files means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
     5.  Section 1-210(a), G.S., provides, in relevant part:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to … receive a copy of such records in accordance with the provisions of section 1-212.
     6.  Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     7.  It is concluded that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     8.  It is found that the complainant requested records concerning six files with the following docket numbers:  O2D-194, 02D-128, 020202, 0200 30-252, 02-01546, and 020-0180.
     9.  It is found that the Bridgeport respondents’ attorney came to the first hearing in this matter with approximately 155 pages of responsive records. 
     10. It is found that the attorney did not bring any witnesses to the hearing, but represented to the hearing officer that the responsive records had been sent to the Department of Correction for their review and then for delivery to the complainant.
     11. Because the complainant had not yet received any copies of records, it was surmised that the Department of Correction had not yet performed its review for exemption pursuant to §1-210(b)(18), G.S.  Therefore, on January 30, 2015, the Commissioner, State of Connecticut, Department of Correction and State of Connecticut, Department of Correction (collectively, the “DOC respondents”) were added as respondents, and the case caption was amended accordingly.
     12. The DOC respondents appeared at the second hearing in this matter, with a witness.  It is found that the DOC respondents had not received the responsive records from the Bridgeport respondents.  It is found that the attorney for the Bridgeport respondents erred, as he admitted, when he reported that such records had been sent to the DOC respondents. 
     13. It is found that at the time of both hearings in this matter, the DOC respondents did not maintain the requested records.  It is concluded, therefore, that the DOC respondents did not violate the FOI Act, and the matter is dismissed as to all DOC respondents.
     14. It is found that at some point before the first hearing in this matter, the Bridgeport respondents had gathered the records but were holding them pending payment by the complainant for the copies. 
     15. It is found that the complainant attempted to contact the Bridgeport respondents’ attorney to tell him that if the attorney would provide him with an inventory of responsive records and a redaction log detailing the claimed exemptions, he would not need a hearing in this matter.  It is found, however, that the complainant did not receive either an inventory or a log from the Bridgeport respondents.
     16. At the first hearing in this matter, the complainant challenged the scope of the Bridgeport respondents’ search for responsive records.  In particular, the complainant was concerned about the location of a potentially exculpatory surveillance videotape that the complainant testified was seen by witnesses during the investigation and was referenced in the investigation reports, but was not logged into evidence.  The respondents’ attorney reported that the records keeper for the respondent police department showed him the investigation file and the evidence in the property room.  It is found that such search produced the approximately 155 pages referenced in paragraph 9, above, but did not produce the videotape sought by the complainant.
     17. At the close of the first hearing, the Bridgeport respondents were instructed to return for the second hearing with a witness who could testify in greater detail about the search for records responsive to all of the docket numbers cited by the complainant.  The respondents were also instructed to create a redaction log describing what records they sought to withhold from disclosure and the exemption or exemptions on which they relied.
     18. The Bridgeport respondents returned to the second hearing in this matter again without a witness.  Instead, their attorney produced an affidavit from a detective for the respondents who is responsible for retrieving files from the police department in response to FOI requests.  It is found that the respondents did not provide a copy of such affidavit to the complainant in advance of the hearing.
     19. It is found that the detective’s affidavit stated that he contacted the respondents’ record room clerk, who searched for records concerning four of the docket numbers provided by the complainant.  It found that the affidavit stated that the clerk could not locate three of the four files, but the affidavit provided no evidence as to the scope of the search. 
     20. With respect to the fourth docket number (O2D-194), it is found that the affidavit stated that the detective “located” a video recording of the crime scene.  It is found that the respondents submitted no testimony as to whether this is the surveillance video sought by the complainant, as there is no evidence in this matter that anyone actually viewed the discovered “crime scene” recording.
     21. With respect to copies of the investigation files, the respondents’ attorney stated that witness statements, dates of birth, addresses, and phone numbers would be redacted from any copies of records provided to the complainant.  It is found, however, that the respondents failed to create a log of what information was withheld.
     22. It is found that the respondents failed to prove that they conducted a diligent and prompt search for all of the records requested by the complainant in this matter.
     23.  It is concluded that the respondents violated §1-210(a), and 1-212(a), G.S. by failing to promptly provide the complainant with all the non-exempt records he requested.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The matter is dismissed as to the DOC respondents only.
     2.  Within 21 days of the notice of final decision in this matter, the Bridgeport respondents shall undertake a thorough search for records responsive to all of the docket numbers specified by the complainant in paragraph 8 of the findings of fact, above. 
     3.  Within 28 days of the notice of final decision in this matter, the Bridgeport respondents shall execute an affidavit by the person or persons who performed such search, detailing the scope of the search and its results.
     4.  Within 42 days of the notice of final decision in this matter, the Bridgeport respondents shall forthwith complete a redaction log of all responsive records, which log shall include a general description of each record withheld and the exemption relied upon.
     5.  The Bridgeport respondents shall forthwith provide a copy of such redaction log and all affidavits to the complainant, free of charge.  The respondents shall forthwith also provide a copy of the redaction log, along with a copy of all non-exempt responsive records to the complainant, free of charge, via the Commissioner of the Department of Correction for review pursuant to §1-210(b)(18), G.S.
     6.  Counsel for the Bridgeport respondents shall provide notice to the Commission of the Bridgeport respondents’ compliance with all the requirements of this order.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 22, 2015.
__________________________
Cynthia A. Cannata
Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Ramon Lopez #227089
Cheshire Correctional Institution
900 Highland Avenue
Cheshire, CT  06410
Chief, Police Department, City of Bridgeport;
Police Department, City of Bridgeport
c/o Gregory M. Conte, Esq.
Bridgeport City Attorney’s Office
999 Broad Street
Bridgeport, CT  06604
Commissioner, State of Connecticut, Department
of Correction; and State of Connecticut, Department of Correction,
c/o James Neil, Esq.
24 Wolcott Hill Road
Wethersfield, CT  06109

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-402/FD/cac/4/22/2015